Citation Nr: 1033323
Decision Date: 09/03/10 Archive Date: 09/13/10
DOCKET NO. 09-49 948 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg,
Florida
THE ISSUES
1. Entitlement to an initial evaluation in excess of 10 percent
for lumbosacral strain with degenerative disc disease (back
disability).
2. Whether the denial of service connection for a back
disability in a December 3, 1946, decision, was clearly and
unmistakably erroneous (CUE).
3. Whether new and material evidence has been submitted to
reopen a claim of service connection for a fungal disorder.
4. Entitlement to total disability based on individual
unemployability (TDIU).
5. Eligibility to Dependants' Educational Assistance under
38 U.S.C.A. § Chapter 35 (educational benefits).
ATTORNEY FOR THE BOARD
R. Morales, Associate Counsel
INTRODUCTION
The Veteran served on active duty from December 1944 to November
1946.
This appeal comes before the Board of Veterans' Appeals (Board)
from rating decisions of the Department of Veterans Affairs (VA)
Regional Office (RO) in St. Petersburg, Florida.
Since the issuance of the December 2009 statement of the case,
the Veteran has submitted voluminous records. These records
consist of his statements, copies of records already in the
claims file, and current orthopedic records. As none of these
are new evidence related to the CUE claim, appellate review on
that matter can proceed.
In August 2010, the Veteran submitted a statement complaining of
problems with his left knee, right foot, and diabetes. This may
be interpreted as a claim for an increased rating for the
service-connected bilateral foot disorder, and for service
connection for a left knee disorder and diabetes. These issues
have been raised by the record, but [has/have] not been
adjudicated by the Agency of Original Jurisdiction (AOJ).
Therefore, the Board does not have jurisdiction over them and
they are REFERRED to the AOJ for appropriate action.
Please note this appeal has been advanced on the Board's docket
pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
The issues of an entitlement to an increased initial evaluation
for a back disability, whether new and material evidence has been
submitted to reopen a claim of service connection for a fungal
disorder, entitlement to TDIU, and eligibility to Dependants'
Educational Assistance under 38 U.S.C.A. § Chapter 35 are
addressed in the REMAND portion of the decision below and are
REMANDED to the RO via the Appeals Management Center (AMC), in
Washington, DC.
FINDINGS OF FACT
1. Entitlement to service connection for back strain was denied
by the RO in a December 1946 rating decision. The Veteran was
notified of the decision and his appellate rights and did not
file an appeal.
2. The December 1946 rating decision was consistent with, and
reasonably supported by the evidence then of record, and the
existing legal authority, and it did not contain undebatable
error that would have manifestly changed the outcome.
CONCLUSIONS OF LAW
1. The December 1946 rating decision, which denied service
connection for a back strain is final. 38 U.S.C.A. § 7105(c)
(West 2002).
2. The December 1946 rating decision which denied service
connection for back strain was not clearly and unmistakably
erroneous. 38 U.S.C.A. §§ 5110 (West 2002); 38 C.F.R. § 3.105
(2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duties to Notify and Assist
As a preliminary matter, the Board finds that the Veterans Claims
Assistance Act of 2000 (VCAA) is not applicable to the Veteran's
claim of CUE in the prior rating decisions, as a matter of law.
The United States Court of Appeals for Veterans Claims (Court)
has held that the VCAA does not apply to CUE actions. See
Livesay v. Principi, 15 Vet. App. 165 (2001)(en banc) (holding
VCAA does not apply to Board CUE motions); Baldwin v. Principi,
15 Vet. App. 302 (2001) (holding VCAA does not apply to RO CUE
claims). The general underpinning for the holding that the VCAA
does not apply to CUE claims is that regulations and numerous
legal precedents establish that a review for CUE is only upon the
evidence of record at the time the decision was entered (with
exceptions not applicable in this matter). See Fugo v. Brown, 6
Vet. App. 40, 43 (1993); Pierce v. Principi, 240 F.3d 1348 (Fed.
Cir. 2001) (affirming the Court's interpretation of 38 U.S.C. §
5109A that RO CUE must be based upon the evidence of record at
the time of the decision); Disabled Am. Veterans v. Gober, 234 F.
3d 682 (Fed. Cir. 2000) (upholding Board CUE regulations to this
effect).
CUE
Under the provisions of 38 C.F.R. § 3.105(a), previous
determinations that are final and binding, including decisions of
service connection, will be accepted as correct in the absence of
clear and unmistakable error. In order for a claim of CUE to be
valid, there must have been an error in the prior adjudication of
the claim; either the correct facts, as they were known at the
time, were not before the adjudicator or the statutory or
regulatory provisions extant at the time were incorrectly
applied. Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel
v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3
Vet. App. 310, 313-14 (1992) (en banc). Further, the error must
be "undebatable" and of the sort which, had it not been made,
would have manifestly changed the outcome at the time it was
made, and a determination that there was CUE must be based on the
record and law that existed at the time of the prior adjudication
in question. Id. Simply to claim CUE on the basis that the
previous adjudication improperly weighed and evaluated the
evidence can never rise to the stringent definition of CUE, nor
can broad-brush allegations of "failure to follow the
regulations" or "failure to give due process," or any other
general, non-specific claim of "error" meet the restrictive
definition of CUE. Fugo v. Brown, 6 Vet. App. 40, 44 (1993).
Clear and unmistakable error is an administrative failure to
apply the correct statutory and regulatory provisions to the
correct and relevant facts. It is not mere misinterpretation of
facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991).
It is a very specific and rare kind of error of fact or law that
compels the conclusion, as to which reasonable minds could not
differ, that the result would have been manifestly different but
for the error. Fugo, supra.
Where evidence establishes CUE, the prior decision will be
reversed or amended. For the purpose of authorizing benefits,
the rating decision which constitutes a reversal of a prior
decision on the grounds of CUE has the same effect as if the
corrected decision had been made on the date of the reversed
decision. 38 C.F.R. §§ 3.104(a), 3.400(k).
The Court has propounded a three-pronged test to determine
whether CUE is present in a prior final determination:
(1) [E]ither the correct facts, as they were known at the time,
were not before the adjudicator (i.e., more than a simple
disagreement as to how the facts were weighed or evaluated) or
the statutory or regulatory provisions extant at that time were
incorrectly applied;
(2) the error must be 'undebatable' and of the sort 'which, had
it not been made, would have manifestly changed the outcome at
the time it was made'; and
(3) a determination that there was CUE must be based on the
record and law that existed at the time of the prior adjudication
in question. Damrel, supra.
The relevant laws and regulations in effect in 1946 with respect
to awards of service connection were essentially unchanged from
those in effect at present; however, the numeric designations
differed. See generally Pub. Law No. 77-361 (effective December
20, 1941); VA Inst. 1 to Sec. 9(a) and (b) of Pub. Law. No. 78-
144 (effective July 13, 1943); Regulations and Procedure -
Regulations (R&PR) 1077(B) (effective December 20, 1941).
Service connection may be granted for a disability resulting from
disease or injury incurred in or aggravated by active service. 38
U.S.C.A. § 1110 (West 2002); 38 U.S.C.A. § 471, 471a (1946); 38
C.F.R. § 2.1077 (1946).
Every Veteran shall be taken to have been in sound condition when
examined, accepted, and enrolled for service, except as to
defects, infirmities, or disorders noted at the time of the
examination, acceptance, and enrollment, or where clear and
unmistakable evidence demonstrates that the injury or disease
existed before acceptance and enrollment was not aggravated by
such service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. §§
2.1078, 2.1079 (1938, 1946).
The Veteran has claimed there was CUE in a rating decision of
December 3, 1946, in response to the Veteran's claim that had a
back strain in June 1945. A review of that decision shows that
service connection for a back strain condition was denied, and
the RO stated that "back strain condition was not found on last
examination." Notice of this decision was provided to the
Veteran in December 1946. This RO decision was confirmed by
another issued in February 1948, after a VA examination of the
back. As part of the explanation for the denial, the RO noted
that there was no evidence of back pathology in service, at
discharge or [on] subsequent examinations. Notice of the later
denial was provided to the Veteran in February 1948.
In the case at hand, the requirement for a detailed statement of
reasons and bases was not applicable at the time of the
challenged rating decisions. See, e.g., Natali v. Principi, 375
F.3d 1375 (Fed.Cir. 2004); Pierce v. Principi, 240 F.3d 1348
(Fed.Cir. 2001); Joyce v. Nicholson, 19 Vet. App. 36 (2005) (In
general for the proposition that because the law prior to the
enactment of the Veterans' Benefits Amendments of 1989 did not
require the RO to set forth in detail the factual bases for its
decisions; nor provide in depth discussion of applicable law, the
failure to do so was not clear and unmistakable legal error at
the time of such decisions, and the rating board was presumed to
have made the requisite findings under a presumption of
validity).
Because the RO had no obligation at the time of issuance of the
1946 decision to recite the evidence considered, "[s]ilence in a
final RO decision made before February 1990 cannot be taken as
showing a failure to consider evidence of record." See id; see
also Russell; and, Mason v. Brown, 8 Vet. App. 44 (1995).
Additionally, a current provision of law not applicable at the
time of the challenged decision may not form the basis for a CUE
allegation. Id.
To raise a valid claim of CUE, the Veteran must state, with
"some degree of specificity," what the error is and also
provide "persuasive reasons" why the result would have been
manifestly different but for the alleged error. An assertion
that the adjudicators had "improperly weighed and evaluated the
evidence can never rise to the stringent definition of CUE."
Fugo, supra. There is a presumption of validity to otherwise
final decisions, and where such decisions are collaterally
attacked, and a CUE claim is undoubtedly a collateral attack, the
presumption is even stronger.
Essentially, the Veteran argues that the RO did not properly
weigh the evidence of record at the time of issuance of the 1946
rating decision, and that the RO failed to properly apply the
applicable laws and regulations when it did not consider service
connection secondary to a service-connected foot disorder.
At the time of issuance of the December 1946 rating decision, the
evidence on file at that time consisted of service treatment
records. While the Board acknowledges that the RO did not
specifically refer to the applicable laws and regulations
referring to secondary service connection, the Board notes that
the absence of a specific reference to, or failure to cite, a
controlling regulation in a rating decision does not mean it was
not considered. VAOPGCPREC 6-92 at para. 6 (Mar. 6, 1992).
Failure to discuss regulations does not constitute CUE as there
is nothing to suggest that, had there been a written discussion
of such regulations, a different result would have ensued.
Crippen, supra. In rendering the initial rating decision, the RO
clearly relied on service treatment records.
Although the rating decision was not optimally comprehensive in
its discussion, again, the Court has recognized that RO decisions
issued prior to February 1990 may not be as thorough as those by
today's standards. Given the clarity of the service treatment
records at discharge, which note a history of a back strain but
find no current back abnormalities, the Board is satisfied that
the RO decision was a fair exercise in rating judgment. Although
the Veteran contends that the evidence was adequate at this time
for the grant of service connection and the error occurred by not
so granting, for the above reasons, the Board cannot agree that
CUE was committed. Based on the evidence at the time, there was
no CUE. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting
Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)).
Wilson v. West, 11 Vet. App. 383, 386 (1998)(a determination that
there is CUE must be based on the record and law that existed at
the time of the prior adjudication in question).
The Court has held that "simply to claim CUE on the basis that
previous adjudications had improperly weighed and evaluated the
evidence can never rise to the stringent definition of CUE."
Fugo, supra; Luallen v. Brown, 8 Vet. App. 92, 96 (1995).
ORDER
The claim that a denial of service connection for a back
disability in a December 3, 1946, decision was clearly and
unmistakably erroneous is denied.
REMAND
A review of the file reveals a number of outstanding medical
records that must be obtained. Regulations provide that efforts
must be made to secure all private medical records and VA records
that may exist related to the Veteran's claim. 38 C.F.R. §
3.159(c)(1) defines reasonable efforts in obtaining records
outside the custody of the federal government as "an initial
request for the records, and, if the records are not received, at
least one follow-up request." In August 2010, the Veteran
submitted a statement that there was additional evidence
available at the Florida Hospital in Altamonte Springs, Florida,
and that VA could go ahead and obtain this evidence. VA must
attempt to obtain these records.
The Veteran was recently granted service connection for his back
disability, effective January 1999; but no VA examination has
been conducted to determine the current severity of this
disability. A VA examination of the spine, with findings
responsive to the applicable rating criteria, is required to
properly evaluate the disability. See 38 U.S.C.A. § 5103A (West
2002); 38 C.F.R. § 3.159 (2009). See also Green v. Derwinski, 1
Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran
with a thorough and contemporaneous medical examination, one
which takes into account the records of prior medical treatment,
so that the evaluation of the claimed disability will be a fully
informed one) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994)
(an examination too remote for rating purposes cannot be
considered "contemporaneous"). On remand, the Veteran should
be scheduled for a VA examination for his back.
The Veteran's claims for TDIU and eligibility for educational
benefits are also the subject of this remand because adjudication
of other claims on appeal may impact the outcomes on the claims,
and accordingly, the Board concludes that these claims are
inextricably intertwined. This is in accordance with Harris v.
Derwinski, 1 Vet. App. 180, 183 (1991), in which the Court
recognized that inextricably intertwined claims should not be
adjudicated piecemeal
(Please note, this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2009).
Expedited handling is requested.)
Accordingly, the case is REMANDED for the following action:
1. Obtain the Veteran's current and
complete Florida Hospital treatment
records. Evidence of attempts to obtain
these records should be associated with
the claims file. Do not associate
duplicate records with the claims file.
2. Schedule the Veteran for a VA
examination to determine the current
severity of the Veteran's back disability.
The entire claims file must be made
available to the VA examiner. Pertinent
documents should be reviewed. The
examiner should conduct a complete history
and physical. Pain in the range of motion
should be noted, as should any additional
functional impairment caused by repetitive
motion.
All necessary diagnostic testing should be
conducted and commented upon by the
examiner. All opinions should be
supported by a clear rationale, and a
discussion of the facts and medical
principles involved would be of
considerable assistance to the Board.
3. After completing the above action, the
claims should be readjudicated. If the
claims remain denied, a supplemental
statement of the case should be provided
to the Veteran and his representative.
After the Veteran and his representative
have had an adequate opportunity to
respond, the appeal should be returned to
the Board for appellate review.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
______________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs